United States v. Miguel Perez-Silvan
861 F.3d 935
| 9th Cir. | 2017Background
- Miguel Perez‑Silvan, a Mexican national, was convicted of illegal reentry under 8 U.S.C. § 1326 and sentenced after pleading guilty; the district court applied a 16‑level § 2L1.2(b)(1)(A)(ii) enhancement for a prior Tennessee aggravated assault conviction and imposed 77 months.
- He had a 2005 Tennessee conviction under Tenn. Code Ann. § 39‑13‑102 for "intentionally or knowingly" causing bodily injury by use of a deadly weapon.
- Perez‑Silvan appealed the illegal reentry sentence (No. 16‑10177) and attempted a separate appeal (No. 16‑10205) regarding supervised‑release revocation, but the latter was untimely and not briefed.
- The central legal question was whether the Tennessee aggravated‑assault conviction qualifies as a "crime of violence" for the Guidelines enhancement under the categorical/modified categorical approach.
- The Ninth Circuit analyzed divisibility of Tenn. § 39‑13‑102(a), examined the charging documents, and applied Supreme Court and circuit precedent to determine whether the conviction met the "elements" prong of the Guidelines definition.
Issues
| Issue | Perez‑Silvan's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether appeal No. 16‑10205 should proceed despite untimeliness | Late appeal excusable; seek remand to district court for excusable‑neglect finding | Appeal untimely and merits were not briefed; Rule 28 waiver | Dismissed No. 16‑10205 for failure to prosecute and waiver |
| Whether Tenn. § 39‑13‑102(a) is indivisible because it permits reckless conduct | § 39‑13‑102(a) is overbroad/indivisible; may encompass reckless conduct that is not a crime of violence | Statutory alternatives carry different punishments (Class C v. D); (a)(1) and (a)(2) are distinct elements, so statute is divisible | § 39‑13‑102(a) is divisible into (a)(1) (intent/know) and (a)(2) (reckless) |
| Whether the charging documents show Perez‑Silvan was convicted of the non‑violent reckless variant | Aggravated‑assault statute can criminalize non‑violent offensive touching; conviction may have been for a non‑violent variant | Indictment charged "intentionally or knowingly ... by use of a deadly weapon," i.e., (a)(1); thus violent variant | Charging documents show conviction under (a)(1) (intentional/knowing with deadly weapon) |
| Whether conviction under Tenn. § 39‑13‑102(a)(1) qualifies as a "crime of violence" under the elements prong of U.S.S.G. § 2L1.2 | Offensive touching under § 39‑13‑101(a)(3) could be mere contact insufficient for Johnson force requirement | Aggravation elements (serious bodily injury or use/display of deadly weapon) require violent force or at least threatened force | (a)(1) is a crime of violence: serious bodily‑injury and use/display‑of‑weapon variants satisfy the "violent force"/threat requirement |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (established categorical approach for comparing state offense to generic federal crime)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (explained divisibility and limited use of the modified categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (statutory alternatives with different punishments are elements, aiding divisibility analysis)
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" for violent‑felony purposes means violent force capable of causing pain or injury)
- United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009) (applied categorical approach and held aggravated statutes resulting in bodily harm require violent force)
- United States v. Lawrence, 627 F.3d 1281 (9th Cir. 2010) (assault causing substantial bodily harm meets violent‑force requirement)
- Camacho‑Cruz v. Holder, 621 F.3d 941 (9th Cir. 2010) (threatened use of force via deadly weapon constitutes crime of violence)
- United States v. Jennen, 596 F.3d 594 (9th Cir. 2010) (use or display of a deadly weapon during assault satisfies force requirement)